Anderson v Armentano  2016 NY Slip Op 03690  Decided on May 11, 2016  Appellate Division, Second Department is another telling of a sad but familiar story in which a Workers’ Compensation attorney allows the client to think that it is handling all aspects of the personal injury case, but is only handling the WC portion.  Here, as in all versions of this story, the “third-party” action (against the landowner for example) is allowed to drift away.

“On September 17, 2010, the plaintiff allegedly was injured when he fell into a trench at the Hicksville Parking Facility, which was owned by the Town of Oyster Bay, while performing construction work for his employer. After the incident, the plaintiff sought legal representation from the defendant Grey and Grey, LLP (hereinafter G & G), and another attorney with respect to potential claims arising from the accident. On November 17, 2010, G & G and the plaintiff executed a New York State Workers’ Compensation Board “Notice of Retainer and Appearance-Additional Attorney,” which indicated that G & G had been retained to represent the plaintiff “in all proceedings concerning my claim.”

Neither G & G nor the other attorney filed a timely notice of claim against the Town. Although the plaintiff commenced a proceeding for leave to file a late notice of claim against the Town which the Supreme Court granted, this Court reversed the order granting the petition and dismissed the proceeding (see Matter of Anderson v Town of Oyster Bay, 101 AD3d 708).

The plaintiff then commenced this action to recover damages for legal malpractice against G & G and the other attorney. Prior to answering, G & G moved pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it on the basis that documentary evidence established that it had been engaged by the plaintiff only with respect to his Workers’ Compensation claim. The Supreme Court denied G & G’s motion. G & G appeals.”

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